Am. Civil Liberties Union of N. Cal. v. FBI, No. 12-03728, 2014 WL 4629110 (N.D. Cal. Sept. 16, 2014) (Illston, J.)

Am. Civil Liberties Union of N. Cal. v. FBI, No. 12-03728, 2014 WL 4629110 (N.D. Cal. Sept. 16, 2014) (Illston, J.)

Re: Request for records concerning Occupy movement

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 1:  "The Court has reviewed the FBI's ex parte, in camera declaration" and finds that "[t]he contents of the declaration adequately describe the withheld document, identify the kind of information that would expose confidential sources and intelligence activity, and describe the injury to national security that would follow from the disclosure of the information in the withheld document."  "Accordingly, the Court concludes that the FBI has met it burden of establishing the applicability of Exemption 1 to the document."  "In addition, the Court concludes that in camera review of the withheld document itself is unnecessary."  "However, the Court disagrees with the FBI's contention that ex parte, in camera review of the declaration is appropriate."  The court explains that "[t]he declaration does not appear to reveal the very information that the government claims is exempt from disclosure."  "Accordingly, the Court orders the FBI to–within 30 days from the date this order is filed—either (1) publicly file the ex parte, in camera declaration or (2) publicly file an additional declaration explaining how the ex parte, in camera declaration itself reveals the very information that is exempt from disclosure."
   
• Exemption 7, Threshold:  The court holds that "[a]lthough the FBI's current declaration provides more detail than the prior declarations, the Court concludes that it is still insufficient to satisfy Exemption 7's threshold requirement."  The court explains that "[i]n the declaration, the FBI has adequately provided the Court with a legitimate law enforcement purpose—the investigation of domestic terrorism."  "However, the FBI has failed to adequately establish a nexus between the documents at issue and that legitimate law enforcement purpose."  "Moreover, the Court rejects the argument presented by the FBI at the hearing that it has established a sufficient nexus simply because the documents are contained in a counter terrorism database regardless of whether the documents are actually related to any unlawful activity."
   
• Exemption 7(A):  The court holds that "the FBI fails to provide an adequate explanation of why [certain] information is not segregable. The court notes that "the FBI concedes that only some of the information [withheld] pertains to pending investigations."  The court also relates that "[t]he FBI merely notes that the underlying reporting and analysis in the document was condensed to provide the audience with an essential understanding of the threat and proposed action outlined in the document."  The court finds that "the fact that the document is condensed does not explain why it is not segregable."
   
• Exemptions 6 and 7(C):  "With respect to third parties who have provided information to the FBI and third parties merely mentioned in the documents, in its prior order, the Court explained that the FBI's declaration was too conclusory to establish the applicability of Exemptions 6 and 7[(C)]."  "The Court concludes that the current declaration is still too conclusory."  Specifically, "[t]he Court has explained to the FBI that it cannot conduct [the] balancing without a description of the circumstances surrounding these third parties."  The court does find that "the FBI has sufficiently shown that . . . local law enforcement officers have a legitimate interest in keeping their individual names private" and, "[m]oreover, plaintiffs have failed to offer a sufficient public interest justification for releasing these officers' identities."  Specifically, the court finds that "plaintiffs fail to specifically explain how these individual officers' identities would shed light on the FBI's conduct."  "However, the Court agrees with plaintiffs that the FBI has failed to prove that [certain] documents withheld pursuant to these two exemptions are not reasonably segregable."  The court explains that "[a] blanket statement that the documents are not segregable or that all reasonably segregable information has been released is insufficient to satisfy the government's burden."
   
• Exemption 7(D):  "The Court concludes that the FBI has presented sufficient probative evidence showing that . . . particular sources received an express grant of confidentiality."  The court focuses on the fact that "[t]he FBI explains that the fact that the sources received [a certain] designation is a clear indication that there was a confidentiality agreement between the source and the FBI."  However, "[t]he Court concludes that the FBI's declaration is too vague to establish that an assurance of confidentiality can be implied in [other] circumstances."  The court explains that "[t]he FBI does not explain what it means by the term 'organized violent groups.'"  "The declaration states that the individuals come in contact with criminal elements, but the FBI does not explain what types of criminals they are, whether they are violent, or whether they would retaliate against an individual for disclosing information to law enforcement."  "In addition, the FBI does not describe what potential crime these sources were involved in and what the source's position is to the crime."  "Moreover, the Court agrees with plaintiffs that the FBI has failed to prove that the withheld document are not reasonably segregable."
   
• Exemption 7(E):  "In its prior order, the Court explained that the FBI's conclusory assertions that, even though a technique is generally known, the specifics on how and when the technique is used is not generally known, are not adequate to meet the agency's burden."  The court finds that "[w]ith respect to the two categories of 'specific law enforcement techniques utilized to conduct national security and intelligence investigations' and the 'identity of FBI units,' the FBI's current declaration is largely the same [as] the FBI's prior declarations, which this Court has found to be insufficient."  "Indeed, the only new information the FBI appears to provide is that the existence of the FBI unit at issue is known to the public."  "With respect to the 'file numbers' category, the FBI asserts the same 'mosaic' theory of possible circumvention that the Court previously rejected as insufficient with respect to the 'identity of FBI units' category."  Also, "the Court concludes that the FBI has failed to establish the applicability of Exemption 7(E) to the remaining two categories [of information."  The court explains that "[t]he declaration simply provides a blanket statement that the characteristics and data collected are not known and the way the FBI applies and analyzes this information is not known."
   
• Litigation Considerations, In Camera Inspection:  "[A]lthough the Court will review the withheld documents in camera, the FBI must also publicly file a declaration addressing the issues raised above regarding the claimed FOIA exemptions."